Legal aliens

A conservative movement says the Supreme Court is getting too chummy with foreigners

By Luiza Ch. Savage | March 20, 2005

WHEN THE NEXT nominee to the Supreme Court appears at a Senate confirmation hearing, he or she will likely face a question that past nominees have not confronted. Almost certain to come from a Republican, who will no doubt preface it with a ringing discourse on the Founders' original intent, the question will probably go something like this: ''How relevant is foreign law to the interpretation of the United States Constitution?''

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There's a new specter haunting conservative legal circles these days: the specter of foreign threats to American legal sovereignty. What began as suspicion that judges were spending too much time talking to their European counterparts, among others, on the international judicial cocktail circuit has taken on new urgency as references to foreign decisions are popping up in some of the most controversial recent court decisions.

Foreign law made an appearance in the Supreme Court's 2003 ruling overturning a Texas anti-sodomy law and in the Massachusetts Supreme Judicial Court's 2004 decision to legalize same-sex marriage. But the threat level seemed to spike from orange to red this month when the Supreme Court struck down the death penalty for 16- and 17-year-olds in a decision that included lengthy discussion of similar foreign laws.

''The decision of the majority was simply outrageous to a lot of people in and outside of Congress,'' said Representative Tom Feeney of Florida, a Republican member of the House Subcommittee on the Constitution, in a recent interview. ''It wasn't so much the ultimate outcome but the methodology they used to get there was a total outrage,'' said Feeney. ''People say, What does that have to do with what James Madison or the Framers of the Constitution intended?' Absolutely nothing.''

Some legal scholars say a regard for foreign law in American constitutional interpretation has ebbed and flowed over time. ''What we are seeing in the last couple of years is a shift,'' said Georgetown University law professor Vicki Jackson, ''but I don't think it's brand-new.''

The practice dates back to the Founding, Jackson argues, and notes that the Declaration of Independence itself refers to ''a decent respect to the opinions of mankind'' and justifies US independence as needed to protect ''unalienable rights.''

''When the Bill of Rights talks about something like cruel and unusual' punishment,'' said Jackson, ''it refers to a right we could think of as having some universal aspects to it. To the extent that it does, our court's decision making could be informed by how similarly committed countries would see a similar question.''

But conservative critics of such judicial cosmopolitanism don't see it that way. ''The job of judges is to interpret the Constitution as it was enacted here, and not to look at what other people are doing,'' said John C. Eastman, a professor at the Chapman University School of Law and a former clerk to Justice Clarence Thomas. ''That is not interpreting the law, it is making the law, and it's a violation of their oath of office.''

It is not only that the judges are mentioning foreign rulings in their decisions, the critics say, but that they do so selectively. Justice Antonin Scalia has noted that members of the Supreme Court declined entreaties by the government and pro-life groups to follow world opinion in Roe v. Wade-perhaps because few other countries allowed abortion on demand until the point of viability.

''It is part of a trend toward injecting subjective views into the Constitution, rather than following what it actually says,'' said Edwin Meese, a former attorney general under Ronald Reagan and now a fellow at the Heritage Foundation, who believes that a judge's use of foreign law in constitutional interpretation should be grounds for impeachment.

The debate comes as countries around the world increasingly look to each other for guidance in interpreting their constitutions-many of which were adopted in the post-World War II period and share common roots in the 1948 Universal Declaration of Human Rights.

''There is this dialogue going on among countries with common democratic traditions as they try to grapple with the same principles,'' said Errol P. Mendes, a professor of law at the University of Ottawa. ''It's not about trying to incorporate other people's decisions, but about trying to understand the fundamental principles,'' he said.

Nevertheless, critics see it as a threat. ''A lot of constitutions are not designed to be limits on government powers, but contain expansive notions of what government can provide,'' said Eastman. ''Our Founders thought government power was dangerous, but these other constitutions have another view of government-as a great paternalistic being.''

. . .

The issue divides not only legal scholars but, increasingly, the US Supreme Court. In the recent juvenile death penalty decision, Roper v. Simmons, six judges embraced the relevance of foreign law, while three-Scalia, Thomas, and Rehnquist-repudiated it.

Among the Court's cosmopolitans, Ruth Bader Ginsburg has studied affirmative action laws in other countries and quizzed lawyers about them at oral hearings. Stephen Breyer attends an annual conference of international judges at Yale Law School and has urged lawyers appearing before the Supreme Court to study those judges' decisions. In a single dissenting opinion in a 1999 case involving the acceptability of lengthy delays on death row, Breyer referred to decisions from Europe, Canada, Jamaica, India, and Zimbabwe. Reagan appointee and frequent swing-voter Sandra Day O'Connor has said that over time the Supreme Court will ''rely increasingly'' on foreign legal developments, as part of a phenomenon she called ''transjudicialism.''

In his scathing dissent in Roper v. Simmons, Justice Scalia excoriated his colleagues for making references to foreign law on the death penalty when they would presumably not defer to foreign law on matters like the right to a trial by jury or protections against double jeopardy, which are enshrined in the US constitution but are not replicated everywhere. ''To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry,'' Scalia wrote.

The judges who cite foreign law, however, routinely deny that the opinions of foreign courts are the basis of their decisions. In the juvenile death penalty case, for example, Kennedy wrote that widespread world opinion against executing juveniles merely provided ''affirmation'' to the majority conclusion that such executions amount to ''cruel and unusual punishment.''

In January, Scalia and Breyer faced off in an unusual public debate on the issue at American University's Washington College of Law. ''We don't have the same moral and legal framework as the rest of the world, and never have,'' Scalia said. ''If you told the framers of the Constitution that what we're after is to, you know, do something that will be just like Europe, they would have been appalled.''

. . .

The debate, perhaps not surprisingly, has moved from the Court to Congress. After the Court referred to a ruling by the European Court of Human Rights in its 2003 decision striking down the Texas sodomy law, Republicans in Congress swung into action. In March 2004, Feeney and Representative Bob Goodlatte, Republican of Virginia, introduced the Reaffirmation of American Independence Resolution, which states that judges cannot rely on ''foreign judgments, laws, or pronouncements'' unless they ''inform an understanding of the original meaning of the Constitution of the United States.'' (A companion resolution is expected to be introduced in the Senate by John Cornyn, Republican of Texas, this week.)

Seeking how best to rein in the Court's cosmopolitanism, Feeney and his colleagues went as far as to consider pushing for the impeachment of judges who referenced foreign law, he said, but settled on a resolution. ''While you may not have the power to fix a problem in another branch, you can certainly send a strong message,'' Feeney explained.

Feeney says he expects the resolution to come to a vote during this Congress, especially in the wake of the juvenile death penalty decision, in which Justice Kennedy not only discussed foreign law at length but referred to a United Nations convention on the rights of children that the United States has pointedly refused to ratify.

''I don't know if they could have done a better job of ripping up and shredding the Constitution,'' said Feeney. In the ruling, he argued, the Court had essentially entered into and ratified a treaty that had been rejected by the president and the Senate, to whom the Constitution reserves treaty powers.

But in testimony to the House subcommittee studying Feeney's amendment last year, Georgetown's Vicki Jackson said that in the recent cases, ''foreign law is not being used in any way as binding precedent, but as relevant information'' about how other courts view similar issues. For example, in the sodomy case Kennedy used the European decision in part to counter a suggestion in the 1986 decision Bowers v. Hardwick that sodomy had been condemned throughout Western civilization.

Likewise, Mark David Agrast, senior vice president for domestic policy at the Center for American Progress, a liberal think tank, argues that Kennedy wasn't using foreign law to override US law but to help interpret it. ''They are not using foreign decisions as a source of law, but as a source of knowledge,'' he said.

Feeney doesn't disagree that references to foreign law and foreign ideas have precedents in American jurisprudence. It is acceptable, he says, for judges to reference Montesquieu or Locke. ''All the people that the founders read,'' said Feeney. ''That is all perfectly appropriate.'' But, Feeney insists, European Union courts that did not exist then-and which offer judges a wide pallet of decisions from which to pick and choose to suit their personal predilections-should not be considered relevant. ''It's a sliding, slippery slope that has no end,'' Feeney said.

So far, Democrats in Congress have been mostly mute on the issue or have framed it as one of judicial independence or written it off as Republican skepticism of international institutions. Their tune may change, however, if the attitudes of nominees toward the use of foreign law becomes a litmus test in upcoming judicial confirmation battles.

Leonard Leo, executive vice president of the Federalist Society, an influential conservative legal group, said he expects the next court appointee will be pressed to denounce the use of foreign law in Constitutional interpretation. ''It will be an issue because of the number of important Supreme Court cases [affected],'' said Leo. ''It's now happening every year.''

Last week, Representative F. James Sensenbrenner Jr., Republican of Wisconsin and chairman of the House Judiciary Committee, also weighed in. ''The American people,'' said Sensenbrenner, ''have not consented to rule by foreign powers or tribunals, and have never authorized our courts to rely upon foreign judgments or pronouncements when interpreting either American statutory or constitutional provisions.''

His audience: the Judicial Conference of the United States, a body of federal judges from across the country that is headed by Chief Justice Rehnquist. Sensenbrenner warned the judges not to be ''indifferent'' to these concerns.

Supreme Court Justices Stephen Breyer
(top) and Antonin Scalia appeared
together at American University on Jan.
13 in a public debate on the relevance of
foreign law to American constitutional
interpretation.
(AP Photo / Evan Vucci)